Sunday, January 30, 2011

In a speech after being sworn in yesterday, new Secretary of State Elaine Walker pledged to maintain openness in the office that oversees Kentucky elections and certain business records.

Walker, mayor of Bowling Green for the past six years, said her broad goal will be to ensure that the integrity of the office continues, and "It's critical to be transparent."

Kentucky elections are largely run by county court clerks, and Walker said her top priority is working with the 120 clerks in an effort to see that those in smaller counties have the same resources as those in larger counties.

Gov. Steve Beshear, a fellow Democrat who appointed Walker, said in his speech before she took the oath that the secretary of state should see that elections are run fairly, smoothly and honestly. "Kentucky's history is rife with examples to the contrary from time to time," he said, so the secretary of state should have a reputation for honesty and integrity.

Walker was named to fill the 11 months remaining in the term of Republican Trey Grayson, who resigned to become director of the Institute of Politics at Harvard University. She said Grayson has given the office a strong foundation in civic engagement, and "I plan to use my media background to take us to the next level." Walker and her husband are filmmakers who moved from Los Angeles to Bowling Green in 1993; her parents were Polish immigrants who lived in "a steel town in West Virginia" and taught her that "Leadership is not just an honor, but a responsibility," she told the crowd in the nearly full Supreme Court chamber after being sworn in by Chief Justice John Minton Jr.

Walker, 59, is running for a full four-year term and faces a primary challenge from Allison Lundergan Grimes, 33, daughter of longtime Beshear foe and former state Democratic chairman Jerry Lundergan, both of Lexington. Beshear made his choice clear yesterday, telling the crowd that he looks forward to working with Walker for the next year, and "I look forward to working with her for several years in the future." Beshear is running for a second term.

Friday, January 28, 2011

U.S. Sen. Rand Paul of Kentucky was one of four senators to vote against ending the secret "holds" that senators use to anonymously block legislation. Holds will still be allowed, but they must be listed in the Congressional Record.

Voting with Paul on the 92-4 tally were fellow Tea Party favorite Mike Lee of Utah and the leader of the new Tea Party caucus, Jim DeMint of South Carolina, as well as John Ensign of Nevada. All are Republicans.

Ensign told the Las Vegas Review-Journal he opposed the rules change after Senate leaders rejected a provision that would have given senators 72 hours to review bills before deciding whether to allow them to proceed.

Ensign said senators are given 48 hours after a bill is brought to the Senate floor to impose a hold. “All I want to do is make sure we have time to read these bills,” Ensign said.

The Louisville Courier-Journal and the Lexington Herald-Leader continue their fight to obtain Kentucky Department of Health and Family Services documents on the death of a 20-month-old boy who died after drinking drain cleaner at what authorities have described as an a meth lab in Wayne County. The newspapers contend the requested documents are subject to release under the state Open Records Act.

Franklin Circuit Judge Phillip Shepherd last month agreed with the newspapers and ordered the release of the records, which would shed light on the death of Kayden Branham, "who died after drinking drain cleaner at a home where it was allegedly being used to make methamphetamine," The Associated Press reported. At the time of his death, Branham and his 14-year-old mother were under state supervision.

Cabinet officials issued a statement justifying their decision to withhold the records was based on federal and state statutes that require it to keep some information confidential in cases of child deaths and serious injuries, according to the Courier-Journal's story. (Read it here)

Jon Fleischaker, who represents The Courier-Journal, said the cabinet is defying Judge Shepherd's order that the public has a right to such records in cases where children’s lives are at stake, according to the newspaper.

After Shepherd's ruling, the Department of Health and Family Services filed emergency regulations restricting release of information about children who have been killed or badly injured while being abused or neglected. The lawsuit, filed Thursday in Franklin Circuit Court, also asks the judge to overturn the emergency regulations on grounds that they do not meet the definition of a legitimate emergency and are being used instead to prevent release of the records. (Read more)

Wednesday, January 26, 2011

Attorney General Jack Conway has ruled that the appointment calendar of the Fayette County school superintendent is not an open record. The school system successfully relied on an open-records decision that allowed Brereton Jones to keep his appointment ledger secret when he was governor in 1991-95.

The case began when Brenda D. Allen requested the calendar of Supt. Stu Silberman from Jan. 1, 2009, through Nov. 22, 2010. Allen said the calendar must be archived for two years and the "issues of confidentiality" that a governor might have do not apply to a school superintendent. Conway disagreed, citing the Jones case, which said calendars are "preliminary drafts" and "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection." Conway also found that a superintendent has issues of confidentiality described in the federal Family Educational Rights and Privacy Act when meetings concerning individual students occur.

Conway ruled for open government in another case, saying the Jefferson County property valuation administrator improperly relied on the federal Drivers Privacy Protection Act in denying Kevin Wilkins’ Dec. 7 request for “a list of locations of all real and personal property” owned by four named employees. Conway's opinion, drafted by Assistant Attorney General Amye Bensenhaver, cited a Connecticut court decision that tax assessors are not covered by the privacy act, and noted that PVAs don't have records with the information protected by the federal law, which prohibits release of personal information that identifies someone, such as a driver license, Social Security or telephone number. (Read more)

Conway's office lists all open records opinions since 1993, in chronological order.

Saturday, January 22, 2011

He really isn't a member as such, but the Kentucky Press Association wouldn't be the same without him, so the group gave Louisville lawyer Jon Fleischaker its Most Valuable Member Award yesterday.

Fleischaker has been the chief attorney for the association, The Courier-Journal and several other newspapers for decades, and in the early 1980s he and KPA started the only freedom-of-information hotline available at no charge to members of a state press association. He largely wrote the state's open-meetings and open-records laws in the 1970s and headed a rewrite in the early 1990s. The open-government laws remain models for other states.

The lawyer's "body of work is a huge testament to the value of open governance," said outgoing KPA President Chip Hutcheson of Princeton. Hutcheson, who is active in government-affairs issues with the National Newspaper Association, said Fleischaker "created a culture of openness in Kentucky government that is rare among states."

Fleischaker told the group, "It's been a labor of love for me and Kim" Greene, his wife and law partner. He closed with words of caution, saying the American system of politics and government "means you never stop fighting" for freedom of information.

President stresses need for legal ads

In other business at KPA's annual luncheon, Hutcheson was succeeded as president by Jamie Sizemore, right, publisher of The Kentucky Standard in Bardstown. She said the association needs to be more proactive in defending laws requiring government agencies to run legal notices in newspapers. She said polling shows that 89 percent of Kentuckians are more likely to see such ads in their local paper, while only 9 percent said they would more likely see them on web sites, where many officials want to put them instead to reduce costs. Sizemore said legal ads can account for "10, 20 even 30 percent" of a newspaper's revenue, but are also part of its government-watchdog function. KPA has a service that puts legal ads online for free. Sizemore said papers should promote the print and online services "as a bundle" that increases government accountability and transparency. For the Standard's report on its publisher's ascension, click here.

Wednesday, January 5, 2011

An online newspaper based in Louisa prominently noted the Lawrence County Fiscal Court's violation of the state Open Meetings Act in a story this week, but said in the article that the paper would "not file a complaint because the mistake was obviously not intentional." The first paragraph of Roberta Blevins' story in The Levisa Lazer said the new set of magistrates held their first meeting and handled routine transition business. The next three paragraphs read:

The special meeting was not advertised nor was the press sent an agenda or notice of the meeting, said Michelle Miller, who is remaining as secretary in the judge’s office under new Judge/Executive John Osborne. She said she understands this is a violation of the Kentucky Open Meetings Law.

Ms. Miller said the special meeting was announced at the swearing in ceremony last week, but formal notification was not made. The courthouse was closed Thursday and Friday of last week because, Ms. Miller said, state computers are shut down during those days and business cannot be done which comes from the state. This could be the reason notice was not officially given for the organizational get together, she said.

The Lazer management has decided to not file a complaint because the mistake was obviously not intentional.

A "complaint" could take the nature of an appeal to state Attorney General Jack Conway, who could rule that actions taken at the meeting were null and void because the meeting was not legal. The open-meetings violation was not mentioned in the story's headline, which reported that the court named a former magistrate as road foreman.

The story ended with another meetings issue, noting that "Several citizens have complained that the meetings are not held at a time when they can attend." The court meets at 10 a.m. twice a month. "Osborne has said he will look into changing the meeting time if enough people request a move to an evening hour so that working men and women can attend if they so choose," Blevins writes. (Read more)

Monday, January 3, 2011

A man who attended a community focus group whose members had been promised anonymity by university researchers does not have a right of access to audio, video or other recordings of the meeting, the state attorney general's office ruled in an open-records decision dated Dec. 22 and released today.

"Records that are available to one are generally available to all," and Mark Donham of Paducah "stands in the same shoes as any other open-records requester, notwithstanding his presence at the sesssions," said the decision, written by Assistant Attorney General Amye Bensenhaver for Attorney General Jack Conway. It agreed with the University of Kentucky that "There is no way to provide the recording without both identifying the participants and the statements they made under this explicit promise of confidentiality" from the Kentucky Research Consortium for Energy and the Environment, comprising a group of UK researchers.

The promise is a standard one involving university research involving human subjects. In an earlier decision, the attorney general ruled that UK researchers improperly refused to allow Donham to keep material that had been handed out at the session in Paducah. It said the university was correct in refusing a records request for names of participants but did not have the right to insist on return of "visualizations" given out at a subsequent session. The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium under a federal contract. Donham had refused to return a computerized visualization of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open-records request and appeal.

In his latest appeal, Donham said he didn't ask for names of all participants, just the "advisory board members for the study." The attorney general said those members had also been promised confidentiality. It did fault the university for not providing Donham a copy of its final argument during the last appeal, which Donham said inaccurately chacterized his actions at the meeting. He argued that the recordings would prove him correct, but the attorney general said, "However compelling his personal need to the recordings may be, we focus on his legal entitlement to the recordings or lack thereof."